The Brexit Deal and the UK-EU Security Relationship: Insights from the Withdrawal Agreement and the Political Declaration
Helena Farrand Carrapico (Aston University)
On the 29th of March 2019, the cooperation mechanisms and instruments of the Area of Freedom, Security and Justice (AFSJ) will cease to apply, in their current format, to the United Kingdom (UK), following its exit from the European Union (EU).
Since the Maastricht Treaty, the UK has been developing a system of opt-ins and opt-outs (Protocols 19, 21 and 36 of the Treaty of Lisbon) that has allowed it, on the basis of selective participation, to substantially benefit from and contribute to the development of the AFSJ, at the same time as it has enabled the country to avoid taking part in measures which are perceived as not being aligned with its national interests. Well-known examples of instruments and mechanisms the UK takes part in include the European Arrest Warrant, aimed at harmonising extradition procedures, the Schengen Information System, a database for the purpose of border management and law enforcement, and Europol, the EU’s law enforcement agency.
Given that these mechanisms and instruments form the basis of EU citizens’ and residents’ access to effective justice and fundamental rights, and provide protection against serious and organised crime, as well as terrorism, the risks involved in Brexit have the potential to entirely redefine the UK’s internal security and that of its residents (for a deeper analysis on Brexit and internal security, please see the forthcoming book by Carrapico et al. 2019). As a new UK-EU security relationship is starting to take shape, this blogpost reflects on the main issues currently emerging in this field, namely 1) the role of internal security in the Withdrawal Agreement negotiations, and 2) what the Political Declaration reveals about the format and nature of the future security relationship.
Let us start by focusing on the Withdrawal Agreement and internal security negotiations. Although the future UK-EU security relationship will only be properly addressed from April 2019 onwards, phase two of the negotiations (Dec. 2017- November 2018) already touched upon a number of security-related issues. In particular, the Withdrawal Agreement covers a number of provisions relating to ‘Access to network and information systems and databases’ (Art. 8, Common Provisions, Part 1), ‘Ongoing police and judicial cooperation in criminal matters’ (Title V, Separation Provisions, Part 3), and ‘Data and Information processed or obtained before the end of the transition period’ (Title VII, Separation Provisions, Part 3). In these sections, the agreement addresses the applicability of EU law to the UK during the planned transition/ implementation phase up to December 2020, focusing in particular on what will happen to UK-EU JHA operations and information exchange both during and after the transition/implementation period.
If, on the one hand, most aspects of JHA cooperation will remain unchanged during the transition/ implementation phase, on the other hand, the document clearly points at shifting dynamics in that cooperation, starting in March 2019: 1) The UK will continue to benefit from most JHA instruments during the transition/ implementation phase, such as Mutual Legal Assistance in Criminal Matters, with requests received after the conclusion of 2020 no longer being eligible; 2) the only form of cooperation allowed to continue beyond the end of the transition/ implementation phase (for a limited amount of time) is on-going operations, such as Joint Investigation Teams; 3) more importantly, in some areas cooperation will no longer be business as usual, with Member States being allowed to refuse the surrender of their nationals to the UK from April 2019 onwards (see application of the European Arrest Warrant, Art. 185); and 4) the UK will cease to have access to JHA networks, information systems and databases at the end of the transition/ implementation phase in the absence of a new security agreement.
Having discussed the Withdrawal Agreement and its provisions for internal security, what could the future security relationship look like? Throughout 2017 and 2018, the UK gradually defined a general position regarding JHA through a number of Prime Minister’s speeches (such as the Munich speech) and Government papers. Britain’s position is clear about wanting to negotiate access to all instruments and mechanisms it currently benefits from, although it is certainly less clear about how to reach this goal, given that third countries are barred from multiple JHA instruments (such as the European Criminal Records Information System). In July 2018, the UK presented its most developed proposal, namely a bespoke ‘toolkit’ designed to support coordination and cooperation between police and judicial authorities that will prioritise: a) data-driven law-enforcement; b) practical assistance to operations; and c) multilateral cooperation through agencies.
The Political Declaration that accompanies the Withdrawal Agreement partly reflects this goal. Before going into the detail of what this document proposes, it is important to underline that it constitutes simply a declaration of intentions without any legal force, and that the EU is known to have signed multiple political declarations with countries and regions, which were never operationalised, or were only partly realised (please see, for instance, the security provisions of the EU-India Strategic Partnership frameworkor of the EU-League of Arab States Strategic Dialogue). In Part III, the Political Declaration confirms that the future security partnership would ideally include reciprocal law enforcement and judicial cooperation in criminal matters, capable of delivering strong operational capabilities. It even mentions a number of instruments the UK and the EU should strive to cooperate on, such as the Passenger Name Record, Prum, Europol, Eurojust, Extradition, Joint Investigation Teams, CERT-EUand ENISA. In fact, the Declaration goes as far as to say that current arrangements should be approximated, technical and legal barriers permitting.
At the same time as the text remains quite open to future cooperation, it clearly states that the UK should not expect to enjoy the same type of relationship it currently has for 3 reasons: 1) the future agreement will take into consideration that the UK will be a non-Schengen country that does not provide free movement of persons, which considerably limits the UK’s access to instruments; 2) the arrangement will ensure there is a balance between rights and obligations, with a lot of the rights being dependent on the UK’s continued capacity to maintain regulatory alignment (and accepting the CJEU’s role in interpreting EU law); and 3) the UK will need to demonstrate commitment to high level data protection and its data protection standards will need to be deemed suitable by the European Commission so that future data flow and exchanges can take place. Where the legal form of the future agreement is concerned, the Declaration adds little detail, mentioning that the choice of the legal instrument will be part of the negotiations themselves. As such, the door remains open to a number of possibilities, ranging from sectoral bilateral agreements to a larger comprehensive agreement.
Where does this leave us then? In order to answer this question, we need to address the elephant in the room, which is that at the moment the future security relationship depends less on what the Withdrawal Agreement and the Political Declaration propose, but rather on whether these documents will be approved by the House of Commons in a vote planned for the 11th of December. If the vote is positive, then the UK and the EU can go on to negotiate what will in all likelihood be a very lengthy agreement, but if the vote is negative, as it is currently expected to be, it will be very difficult to avoid a hard Brexit, and a sudden loss of access to JHA instruments. In this scenario, the UK will find itself in a race against the Art. 50 clock to find out how fast it can organise new general elections, a possible new referendum with a Remain option, or make contingency planning for a clean break.
Dr Helena Farrand Carrapico is a Senior Lecturer in Politics and International Relations at Aston University and a co-director of the Aston Centre for Europe. Her research focuses on European Union Justice and Home Affairs governance, namely organised crime and cybercrime policies. Her book Brexit and Internal Security: political and legal concerns in the context of the future UK-EU relationship (Palgrave Macmillan) will be available in January 2019.